dissenting:
I respectfully dissent. In my judgment, the district court has misapplied the law, has incorrectly determined that there is no genuine dispute of material fact, and has failed to consider the interpretation of the Fair Labor Standards Act provided by the U.S. Department of Labor. For those three reasons, I would reverse and remand.
It is crystal clear from our prior cases interpreting the “personal staff” exception to the Fair Labor Standards Act and the corresponding exception to Title VII of thé Civil Rights Act of 19641 that the inquiry is an intensely factual one. The preeminent fact to be considered in such interpretations is whether the employee has a “highly intimate and sensitive position of responsibility” and has a “close personal relationship” with the exempt office holder who employs him or her. In Owens v. Rush, 654 F.2d 1370, 1375 (10th Cir.1981) we held that an undersheriff was exempt under the personal staff exception because the undersheriff held an intimate position of responsibility. We observed:
“Thus it would appear that Congress intended for the personal staff exception to apply only to those individuals who are in a highly intimate and sensitive positions of responsibility on the staff of the elected official.” (Emphasis added).
We also observed that the personal staff exception should be “construed narrowly,” and that Congress intended it to apply only to those “who are in a close personal relationship and an immediate relationship with [the exempt official].” Id.
Our next case was Anderson v. City of Albuquerque, 690 F.2d 796, 800-01 (10th Cir.1982). There, we denied any exemption under § 2000e(f), which includes the personal staff exemption, to the Staff Director of the Human Rights Board because that position was not a policy position nor a position of intimate advisor to the Mayor. Although the “personal staff” exemption was not discussed separately, our decision denied any exempt status under § 2000e(f) to the Staff Director of the Human Rights *1115Board because of a lack of intimacy and policy functions.
Our third case was Starrett v. Wadley, 876 F.2d 808, 820-23 (10th Cir.1989). In that case, we rejected a “personal staff” exemption for a Deputy Assessor even though she reported directly to the County Assessor, was his representative to the public, and was hired and dischargeable by the County Assessor. Those facts were not enough to qualify the Deputy .Assessor as a member of the County Assessor’s staff because she did not occupy a “highly intimate and sensitive position of responsibility” on his staff. Id,, quoting, Owens, 654 F.2d at 1375. We concluded that the Deputy Assessor “did not ‘formulate policy or advise [the Assessor] so as to create the immediate and personal relationship’ that is required for the ‘narrow exemption intended by Congress,’ [quoting, Anderson, 690 F.2d at 801].” Id. at 822.2
Other circuits have similarly emphasized the intensely factual nature of the inquiry as to whether a plaintiff falls within the personal staff exemption. Although several of those cases have attempted to enumerate a number of factors to be considered, they all seem finally to anchor their inquiry on whether there was a close personal advisory relationship between the plaintiff and the exempt office holder. A good example of this is found in U.S. v. Gregory, 818 F.2d 1114, 1117 (4th Cir.), cert. denied, 484 U.S. 847,108 S.Ct. 143, 98 L.Ed.2d 99 (1987), a case factually identical to ours. There, the Fourth Circuit refused to find a personal staff exemption for the deputy sheriff position in a small rural sheriff’s office. The district court had found that the deputy sheriff was the “alter ego and personification of the sheriff in the geographical area to which he is assigned.” Id. at 1116. Nevertheless, the Fourth Circuit found that the deputy sheriffs were not covered by the personal staff exception because there was no evidence that they were called upon “to render advice to the sheriff respecting his policy decisions.” Id. at 1117. The court observed that, although it could assume there was a close relationship between the deputies and the sheriff because it was such a small office, “the appellee has simply failed to show that that closeness has engendered a highly intimate relationship which influences the making of policy.” Id. at 1117 (emphasis added).
The case of Teneyuca v. Bexar County, 767 F.2d 148 (5th Cir.1985), is another example of a court attempting to enumerate various factors that should be considered in determining whether the personal staff exemption should apply. Although that court enumerated six factors, it did not suggest that all six be accorded equal weight. One of the factors listed was “the actual intimacy of the working relationship between the elected official and the person filling the position.” Id. at 151. (Emphasis added.) It is apparent that the court intended this to be the preeminent factor from its discussion of the legislative history which stressed that “this exemption shall be construed narrowly,” and from the court’s statement that this exception should be reserved for those who are in a “close personal relationship” and “first line advisors” of the exempt elected official. Id. at 152. The court then quoted with approval the Tenth Circuit opinion of Owens v. Rush, 654 F.2d 1370 (10th Cir.1981):
“Thus it would appear that Congress intended for the personal staff exemption to apply only to those individuals who are in highly intimate and sensitive positions of responsibility on the staff of the elected official.” Id.
The court further observed “that the highly factual nature of the inquiry necessary to the determination of the ‘personal staff’ exemption does not lend itself well to disposition by summary judgment.” Id. Nevertheless, the court approved the granting of *1116summary judgment in that case only because the plaintiffs “wholly failed to present any evidence in response to defendants’ [summary judgment] motion.” Id. As will be discussed below, the facts in our case are very different as the plaintiffs here have introduced explicit affidavits refuting any inference that they occupied highly sensitive, personal, or policy-making relationships with the sheriff.3
The district court here wholly failed to address the nature of the relationship of the deputy sheriffs or undersheriffs to the sheriff. The district court based its holdings only on the legally insufficient facts observed that the deputy sheriffs are hired by the sheriff and serve at the sheriff’s pleasure and that the sheriff is responsible for their actions. See Starrett v. Wadley, 876 F.2d at 820-22. However, the court failed to address or to make any findings concerning whether there was a “highly intimate and sensitive” relationship between the deputy sheriffs and the sheriff, or whether the deputy sheriffs acted as “personal advisors” to the sheriff, or whether they had a “policy-making” role. If not determinative, these factors are at least the most critical factors in deciding whether a personal staff exemption should be applied. By ignoring these elements, the district court has gone directly against controlling Tenth Circuit authority and has ignored the factors that almost every court in the country has considered to be preeminent in evaluating whether a personal staff exemption applies. Thus, the district court evaluation is deficient as a matter of law.
Had the district court considered these factors, it could not have concluded that there was no genuine dispute of material fact as to whether these deputy sheriffs and undersheriffs occupied highly sensitive, intimate, advisory, and policy-making roles with the sheriff. The affidavits submitted by the plaintiffs directly placed those matters at issue as plainly as they could have been disputed. The plaintiffs in the Cossey case submitted affidavits that they were not consulted about policy decisions, were not privy to sensitive information, were not advisors to the sheriff, and had never been undersheriffs. They further averred that they did not assist the sheriff in making policy decisions nor did they act as his advisors. In the Nichols case, the plaintiffs testified by affidavit that they performed strictly routine patrol duties and never presumed to act in a policy-making or advisory role.4 Even the two *1117plaintiff undersheriffs stated that they were undersheriffs in name only, and were actually just “glorified deputies.” They testified they had no supervisory capacity. Here the defendants are in a dilemma, because they seek to emphasize the importance of the undersheriffs, but in doing so they acknowledge an intermediary between the sheriff and the other deputies which makes it even less possible that the deputies could be considered members of the sheriffs personal staff. The district court was unconcerned with that dilemma, however, and simply held all members of the department, deputy sheriffs and undersher-iffs alike, were on the personal staff of the sheriff.5
By virtue of these affidavits, these cases stand in sharp contrast to the situation in Teneyuca where, as pointed out above, the plaintiffs submitted no contradictory evidence to refute the claim that they did not occupy an intimate relationship or close advisory role with the sheriff.
The district court has essentially applied a per se rule that all deputy sheriffs are on the personal staff of the sheriff when the office is small because the deputy sheriffs (and the secretaries, dispatcher, and other employees for that matter) inevitably will be hired and dischargeable by the sheriff and will represent the sheriff's office to the public.6 By ignoring how the deputy sheriffs are, in fact, used in the office, the district court goes contrary to the expressed congressional intent that this exception be “narrowly construed.” To dispose of this highly factual issue on summary judgment, especially when there are sharply conflicting affidavits, is simply inappropriate. Thus, not only did the district court fail to consider the proper factors, but had it considered those factors, it could not have granted the defendant’s motion for summary judgment. Here I should make it clear that I do not suggest that the defendants may not be able to prove their defense at trial. I am only saying that a fair application of our rules for when it is appropriate to grant summary judgement establishes that summary judgement should not have been granted in these cases.
Finally, the Secretary of Labor, in her amicus brief, attached several interpretative opinion letters issued by the Wage and Hour Division of the Department of Labor in which the Department, on facts essentially identical to those presented in these cases, concluded that the deputy sheriffs should not be accorded personal staff exemption status. Because the Wage and Hour Division of the Department of Labor is responsible for applying the Fair Labor Standards Act, its interpretation of the personal staff exemption in that act — through its opinion letters and amicus brief — should be accorded deference. See, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944); Basic, Inc. v. Levinson, 485 U.S. 224, 239 n. 16, 108 S.Ct. 978, 987 n. 16, 99 L.Ed.2d 194 (1988); Trustees of Iron Workers Local 473 Pension Trust v. Allied Products Corp., 872 F.2d 208, 210 n. 2, cert. denied, - U.S. -, 110 S.Ct. 143, 107 L.Ed.2d 102 (1989).
For these reasons, I would REVERSE the granting of the appellees’ motions for summary judgment and REMAND for fur*1118ther proceedings consistent with the appropriate law.
. The “personal staff" exception in the Fair Labor Standards Act is essentially identical to the "personal staff" exception in Title VII, and it is conceded that the exception should receive the same interpretation in both contexts. Brewster v. Barnes, 788 F.2d 985, 990, n. 7 (4th Cir.1986).
. Although the power to formulate policy is not a sine qua non in order to qualify for a personal staff exemption, there is an obvious overlap among the subsections of 29 U.S.C. § 203(e)(2)(C). The absence of any policy making role or immediate advisors role are certainly factors to be considered in deciding whether someone is on the personal staff of an exempt person. Starrett, id.; U.S. v. Gregory, 818 F.2d 1114 (4th Cir.), cert. denied, 484 U.S. 847, 108 S.Ct. 143, 98 L.Ed.2d 99 (1987).
. Contrary to the way the majority would read Teneyuca, there is absolutely no justification in the statute to suggest a burden shifting halfway through the analysis of whether a claimant falls within the personal staff exemption. Teneyuca was simply a case where the defendants presented substantial evidence that the plaintiff was on the personal staff, and the plaintiff put on absolutely no evidence to the contrary. Thus, the plaintiff lost. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A burden shifting analysis was certainly not necessary to the decision in Teneyuca, nor is it authorized under 29 U.S.C. § 203.
. For example, Deputy Nichols stated in his affidavit:
II.
As a Field Deputy I was not in a position to decide whether or not to prosecute crimes. That decision was left strictly to the District Attorney’s Office and was their decision. I was responsible for answering to the District Attorney in the event some type of error regarding the arrest of a criminal, a search and seizure error, or some type of other difficulty with a case. I would also have to answer to the Sheriff, too.
III.
Sheriff Hurley did not ask me how to operate the Sheriff’s Office nor did he seek my advice and counsel regarding operations of the Sheriff’s .Office on a day to day basis. Sheriff Hurley, with the help of his secretary, Sheila O’Neal, handled the budget, caring for the operation and maintenance of the jail, and the day to day operations of the Sheriff's Office.
IV.
I had no intimate and sensitive position of responsibility with the LeFlore County, Oklahoma, Sheriffs Office. I made no decisions concerning policy for the LeFlore, County Oklahoma, Sheriff's Office. I was not asked by Sheriff Charles Hurley for my advice concerning how to conduct operational assignments. Accordingly, I had nothing to do with the day to day operations of the LeFlore County, Oklahoma, Sheriff’s Office nor in the planning and execution of operational assignments. All those items were handled by the Sheriff or his secretary. I was merely a Field Deputy doing what I was told to do by either Sheriff Hurley or the Undersheriff. I mainly patrolled my assigned sector of LeFlore County, Oklahoma, served criminal warrants, ar*1117rested criminals, served civil process, and answered calls from my fellow employee, the LeFlore County, Oklahoma, Sheriffs Office dispatcher. I would assist other LeFlore County, Oklahoma, Law Enforcement agencies when called upon by them for back-up.
V.
That while patrolling and acting in my assigned sector I did not have all of the powers of the LeFlore County, Oklahoma, Sheriff. That is to say, I did not have the power to hire someone; order stepped up patrols in an area; I did not have the unequivocated power to order an investigation; I did not have the power to buy cars, automobile equipment, or other operational and maintenance equipment for the Sheriff’s Office itself.
. The plaintiffs’ affidavits are as detailed as possible when trying to prove a negative. Surely, they are sufficient to establish a genuine dispute of material fact.
. Obviously, the mere fact that appellants were not covered by civil service protection does not automatically categorize them as members of a personal staff. See Brewster v. Barnes, 788 F.2d 985, 989-90 (4th Cir.1986); Teneyuca v. Bexar County, 767 F.2d 148, 150-51 (5th Cir.1985).